Case Information

*1 The Attorney General of Texas December 2% 1985

JIM MATTOX

Attorney General Supreme Court Building Honorable Bob Bush Opinion No. ~~-402 P. 0. BOX 12548 chairman Austin, TX. 79711-2548 Committee on Judic,lary Re: Whether a district judge 512/475-2501 Texas Rouse of Rep,cesentatives whose term expires in 1988 may Telex 9101674.1367 P. 0. Box 2910 be a candidate for probate Telecopier 512/4750266

Austin, Texas 7 5'769 judge in 1986 714 Jackson, Suite 700 Dear Represeutativle Bush: Dallas, TX. 752024506 214l7424944

You request our opinion on the following question: 4824 Alberta Ave.. Suite 180 Does (any provision of the Texas Constitution or El Paso, TX. 799052793 statutory law prohibit a district judge who will 915/5333464 be in the middle of his four-year term at the time

of the 1986 elections (&, will have more than 1001 Texas, suite 700 one year left on his term at the time of the Houston,TX. 77002.3111 election:) from running for a position as a probate

713/2255880 judge 13 the 1986 general election? Article XVI, section 65 of the Texas Constitution provides, in 606 Broadway. Suite 312 Lubbock. TX. 79401.3479 pertinent part, a3 follows: SOW747.5239

Staggering Terms of Office - The following officers elected at the General Election in 4309 N. Tenth, Suite B Novembrc, 1954, and thereafter, shall serve for ,&Allen, TX. 78501.1885 5121882.4547 the full terms provided in this Constitution: (a) District Clerks; (b) County Clerks: (c) 200 Main Plaza, Suite 400 County Judges; (d) Judges of County Courts at Law, San Antonio, TX. 78205.2797 County C,riminal Courts, County Probate Courts and 512i225-4191 County domestic Relations Courts; (e) County Treasurczrs; (f) Criminal District Attorneys; (g)

An Equal Opportunity/ county Surveyors- (h) Inspectors of Hides and Affirmative Action Employer Animals; (i) Co&y Commissioners for Precincts

Two and Pour; (j) Justices of the Peace. Notwithstanding other provisions of this Constitution, the following officers elected at the General Election in November, 1954, shall serve only for terms of two .(2) years: (a) Sheriff:a;; (b) Assessors and Collectors of Taxes; *2 gonorable Bob Bush - Page i (m-402),

(c) District Attorneys; (d) County Attorneys; (e) Public Weighers: (f) County Commissioners for Precincts One 2nd Three; (g) Constables. At subsequent elecM.ons, such officers shall be elected for the full terms provided in this Constitution.

In any distric,t, county or precinct where any of the aforewent,ioned offices is of such nature that two (2) or more persons hold such office, with the result that candidates file for 'Place No. 1,' 'Place NIL, 2.' etc., the officers elected at the General Ilection In November. 1954, shall serve for a tern Iof two (2) years if the designa- tion of their ofE:Lce is an uneven number. and for a term of four (4) years if the designation of their office is s.n even number. Thereafter, all such officers shall be elected for the terms provided in this Cloustitution.

Provided, however, if any of the officers named herein shall aunrEnce their candidacy, or shall in fact become a carrdidate, in any General, Special or Primary Election, for any office of profit or tmst under the laws of this State or the United States other than the office then held, at any time when the unexpired term of the office then held shall excee'z one (1) year, such aunouncement or such candidac2 shall constitute an autowatic resignation of the office then held, and the vacancy thereby created shall be filled pursuant to law in the same wanner as other vacancies for such office are filled. (Emphasis added).

Because article XVI, section 65, does not mention district judges , the automatic resignation provision does not apply to district judges. The United States Supreme Court upheld article XVI, section against a claim that the application of the resign-to-run 65, provision to some public officials and not to others violated the equal protect&m clause c'f the Fourteenth Amendment. Clement6 v. Pashing, 457 U.S. 957 (198::).

We are aware of no similar provision that applies to district judges. But see Code of Judicial Conduct, Canon 7, V.T.C.S. Title 14-App. (Eiug political activity by judges); see also Tex. Const. art. V, $l-a(6)(A: (willful violation of Code of Judicial Conduct is grounds for removal).

Honorable Bob Bush - Page :' (JM-402)

SUMMARY The resign-tc-run provision of article XVI, section 65, of the Texas Constitution does not apply to district judges.

JIM MATTOX Attorney General of Texas JACK BIGHTOWKR

First Assistant Attorney Goneral

MARY KELLER

Executive Assistant Attornoy General

ROBERT GRAY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Committee!

Prepared by Sarah Woelk

Assistant Attorney General